CAAF will hear oral argument in the Army case of United States v. Haverty, No. 16-0423/AR (CAAFlog case page), on Wednesday, November 16, 2016, after the oral argument in Swift. The case presents a single issue – specified by the court – that questions the mens rea required for hazing in violation of a general regulation:

Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for an Article 92, UCMJ, violation of Army Regulation 600-20, which prohibits requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.

Sergeant (E-5) Haverty was convicted of numerous offenses by a general court-martial composed of members with enlisted representation. One offense was violation of Article 92 for hazing by “wrongfully requiring Specialist [BB] to consume alcohol.” App. Br. at 3 (citing record). The alcohol consumption occurred while Haverty helped the other soldier prepare gear for a field exercise. Haverty verbally pressured the other soldier into consuming approximately two shots of liquor while preparing the gear. The prosecution characterized this as “order[ing] her to drink alcohol,” in closing argument. App. Br. at 8 (quoting record). Haverty was also convicted of other (touching) offenses committed against the other solder during this encounter, including cruelty and maltreatment, aggravated sexual contact, abusive sexual contact, indecent viewing, and assault consummated by battery. Gov’t Br. at 6.

Last term, in United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page), CAAF held that an accused charged with providing alcohol to minors in violation of an order prohibiting such conduct must act with at least reckless disregard for the true age of the minors in order to be guilty of an orders violation. Haverty returns CAAF to the question of mens rea (mental state) required to violate an order, this time in the context of hazing.

In Haverty, the order in effect at the time defined hazing as:

unnecessarily [causing] another military member or employee, regardless of Service or rank, to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful. . . . [including] any form of initiation “rite of passage” or congratulatory act that involves . . . forcing or requiring the consumption of excessive amounts of food, alcohol, drugs, or other substances.

App. Br. at 3. Haverty’s brief asserts that in light of CAAF’s decision in Gifford he must have acted at least recklessly “by requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.” App. Br. at 16.

The Government’s response asserts the hazing in violation of the order is a general intent crime:

Recognizing the different character of the military community and of the military mission, AR 600-20, para. 4-20, was drafted to prohibit what is objectively considered hazing. The language in the regulation states the Army is a “values-based organization where everyone is encouraged to do what is right by treating others as they should be treated-with dignity and respect. Hazing is fundamentally in opposition to our values and is prohibited.” AR 600-20, para. 4-20. Additionally, the regulation provides examples of what hazing includes, “but is not limited to.” AR 600-20, para. 4-20.a.(1 ). This broad language demonstrates the Secretary of the Army’s attempt to eliminate all forms of hazing regardless of whether the individual believed his actions qualified as hazing.

Gov’t Br. at 18. The brief adds that:

[T]he government must prove that conduct “unnecessarily cause[ d] another military member or employee, regardless of Service or rank, to suffer or be exposed to an activity that is cruel, abusive, oppressive, or harmful.” AR 600-20, para. 4-20.a. However, the government does not have to prove that appellant specifically intended his actions as cruel, abusive, oppressive, harmful, hazing, an initiation, or a rite of passage.

Gov’t Br. at 19. The Government’s position tracks the aalysis employed by CAAF in United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016) (CAAFlog case page), in which the court concluded that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the general intent military offense of maltreatment in violation of Article 93.

The Government’s brief also notes that the charge and the military judge’s instructions to the members both required that Haverty’s provision of the alcohol to Specialist BB be wrongful. The inclusion of this term was sufficient to salvage an Article 134 conviction in United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page).

Yet Haverty’s reply brief provides an interesting hypothetical:

Like Gifford, the presumption in favor of scienter is necessary to ensure the separation of innocent and wrongful conduct. Someone who truly intends to offer alcohol for consumption – with no awareness their offer could be construed as compulsory – could still be convicted if the fact finder concludes the recipient believed consumption was required. Further muddying the waters, the regulation states “express or implied consent to hazing is not a defense.” (JA 128, 234). Therefore, a defendant who believes they are offering alcohol ( and then receives express consent) could still be convicted if the fact finder concludes the recipient thought consumption was required. Most troubling, a defendant could even be convicted when both the provider and recipient believe alcohol was offered, if the fact finder concludes consumption was required.

Rep. Br. at 5-6 (emphases in original).

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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